Paid Family Leave

The New York State Workers’ Compensation Board (“WCB”) has just released the long-awaited Paid Family Leave (“PFL”) forms. There is a general application form (PFL-1), as well as various certification forms depending on the type of leave requested:

As we mentioned in a previous blog post, the WCB has already released the waiver form (PFL-Waiver) and two forms regarding voluntary coverage (PFL-135 and PFL-136). We will continue to provide additional updates on PFL as they become available.

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So here is Week 3 of Bond’s New York Paid Family Leave (“PFL”) Q&As. This week we are focusing on which employers are and are not covered. We also answer your questions about what certain exempt employers (i.e., those who are not required to have PFL coverage) must do in order to opt in for voluntary PFL coverage. In fact, certain exempt employers have an obligation to make a decision by December 1, 2017, as to whether to opt in for PFL coverage and will be required to report their decision to the NYS Workers Compensation Board (“WCB”).

Question: Are there any employers in New York that are not covered by PFL?

Answer: Yes. In light of the fact that PFL is intended to piggy back onto the Disability Benefits Law (“DBL”), it applies to any entity considered a covered employer under DBL. While all private sector employers in New York that have one or more employees are subject to and have to comply with DBL, and now PFL, the same exclusions as to who is a “covered employer” apply. Thus, employers exempt from DBL are also exempt from PFL. PFL does not apply to public sector employers, including the state, any political subdivision of the state, a public authority, or any other governmental agency or instrumentality. This exemption applies to cities, villages, towns, public libraries, public authorities, municipalities, fire districts, water districts, and school districts.

There are also a few others who are not required to provide PFL benefits, including owners/shareholders of a corporation with no employees, owners/shareholders of partnerships, LLCs, LLPs with no employees, individuals who employ personal or domestic workers that work less than 40 hours per week, Native American enterprises (i.e., casinos), self-employed individuals, or sole proprietors and members of an LLC/LLP.

Question: Can public sector employers choose to be covered under the PFL law?

Answer: Yes. The PFL regulations lay out the process a public employer must follow if it elects to opt in. The process is slightly different for unionized and non-unionized employers. If a public employer chooses to cover its non-unionized workers, it must provide 90 days’ notice of its decision to opt in. The notice must tell employees that the payroll deduction will not exceed the maximum amount allowed by law.

Not surprisingly, in order for a public employer to cover its employees who are represented by a union, it must engage in collective bargaining and obtain the agreement of the union. Once an agreement is reached, the employer must notify the WCB for approval.

Notably, public employers are the only employers who can elect to provide DBL only, PFL only, or both DBL and PFL coverage. Public employers who elect to provide PFL must maintain it for at least one year. Prior to discontinuing voluntary PFL coverage, the public employer must provide 12 months’ written notice to the WCB and the affected employees. Those employers will also need to have made provisions for the payment of any benefits incurred on and prior to the effective termination date of such benefits.

Question: Are public sector employers who are already providing voluntary DBL coverage required to also provide PFL?

Answer: No. However, public sector employers who currently provide voluntary DBL to their employees must notify their employees and the WCB whether they will or will not be providing PFL to their employees. This decision must be made and reported to the WCB by December 1, 2017.

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Please continue to visit our blog for weekly Q&As during August 2017 and other PFL updates throughout the fall.

If you have any questions about PFL, please contact the authors of this post, any of the attorneys in our Labor and Employment Law Practice, or the Bond attorney with whom you regularly work.

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Welcome to Week 2 of Bond’s New York Paid Family Leave (“PFL”) Q&As. Many of the most commonly asked questions during Bond’s PFL webinars focused on the intersection of the federal Family and Medical Leave Act (“FMLA”), the Disability Benefits Law (“DBL”) and PFL. In this post, we answer some of those questions.

Question: Can an employee save their PFL time and take it after having already taken 12 weeks of FMLA? Or vice versa, save their FMLA time and use it after taking PFL?

Answer: Like every good legal question, the answer is . . . it depends. More specifically, it depends on the reason for the leave. It is important to bear in mind that the qualifying reasons for FMLA and PFL are like intersecting circles. While there are some reasons that fall under both laws, there are some leaves that will be covered only by FMLA, and some that will be covered only by PFL. So, an employee can only “save” one type of leave or “stack” the two leaves if one of the leaves (or part of a leave) qualifies under only one law.

To demystify this interplay, let’s take a few potential scenarios:

Karen takes leave to care for a grandparent with a serious health condition beginning in January 2018 for 8 weeks. This is a PFL qualifying reason, but not an FMLA qualifying reason. (Grandparents are a covered family member under PFL, but not under FMLA.) Therefore, when Karen returns to work, she still has her full 12-week entitlement under FMLA. In October 2018, Karen’s daughter has surgery and she needs 6 weeks off. Although she has exhausted her PFL leave, she still has her entire FMLA bank of 12 weeks available (assuming the 1,250 threshold of hours is met) because the January leave did not count against her FMLA entitlement. Karen ends up taking 14 job-protected weeks off in 2018 (and still has 6 weeks of FMLA time to spare!).

Ed takes leave in February 2018 because he is having bunion surgery. His surgeon takes him out of work for 6 weeks. This is an FMLA qualifying leave, but not PFL because an employee’s own serious health condition is not covered under PFL. In July 2018, Ed’s father has a stroke. Ed requests 10 weeks off because his father is undergoing rehabilitation. Ed only has 6 more weeks of FMLA. However, he still has 8 weeks of PFL leave that he has not yet touched! Here is where things get more complicated: Is Ed entitled to a total of 14 more weeks (6 FMLA + 8 PFL)? No! The first 6 weeks would count as both FMLA and PFL. His father’s serious health condition is covered under both laws. After 6 weeks, FMLA runs out, but Ed can stay out an additional 2 weeks under PFL. In the end, he is entitled to only 8 more weeks — not the 10 he requested. The employer could deny the additional 2 weeks.

Jeremy is a new father in 2018. He has heard about these laws, and knows that FMLA provides 12 weeks and PFL provides 8 weeks (in 2018). He requests 20 weeks to bond with his new baby boy. Is he eligible for 20 weeks? No. In this case, the reason for the leave (bonding) qualifies under both laws. Assuming Jeremy has met the eligibility requirements under both laws, the employer can require that the leaves be taken concurrently. The 12 weeks (FMLA) and 8 weeks (PFL) run at the same time. He can only take a total of 12 weeks of job-protected leave.

Question: In that last example, couldn’t Jeremy say that he does not want to be paid for the first 12 weeks (the FMLA period) and refuse to file a PFL claim, in an attempt to save the PFL leave?

Answer: No. The PFL regulations provide that if a leave qualifies under FMLA and PFL, the employer designates the leave under FMLA, and the employee is notified that it is covered under both laws, the FMLA leave time will count against the employee’s PFL entitlement even if the employee refuses to file a PFL claim.

Question: Can you review the maternity leave scenario again?

Answer: Maternity leave promises to be the most confusing to administer because of the intersection of PFL, FMLA, and DBL. Here is how it could play out in a typical pregnancy: The first 6-8 weeks after childbirth is usually considered a period of disability, so the mother could use her DBL benefits without touching her PFL bonding benefit. Then, when she completes that 6-8 week period, she could transition to PFL bonding leave and receive the 8 (eventually 12) week benefit after the DBL benefit. Meanwhile, FMLA runs concurrently with both the DBL and then the PFL leave. However, the mother’s leave entitlement does not end at the expiration of the 12 weeks of FMLA leave because under state law, she is entitled to the full 8 week PFL benefit once she finishes her DBL benefit. The total job-protected time taken (assuming 6 weeks of DBL) is 14 weeks (6 + 8) in 2018.

Question: Can a mother choose to forego DBL and go straight to PFL?

Answer: Yes, once the baby is born, but it will reduce the total number of weeks she can be out on job-protected leave. The mother could elect to start PFL bonding leave on the delivery date. The 8 weeks of PFL would run concurrently with FMLA, and she would be entitled to a total of 12 weeks of leave.

Question: We heard that intermittent leave under PFL can be taken in full day increments, and nothing shorter. If an employee wants to take shorter increments, can the employee use just FMLA leave? Does that count against his/her PFL entitlement?

Answer: Luckily, the regulations address this very scenario. If an employee takes FMLA leave in increments shorter than a day, and if the reasons for the leave would also qualify under PFL, the employer may track this time, and when “the total hours taken for FMLA in less than full day increments reaches the number of hours in an employee’s usual work day, the employer may deduct one day of paid family leave benefits from an employee’s annual available family leave benefit.” However, “[t]he employer shall not be entitled to reimbursement from its carrier for such paid FMLA hours.” 12 N.Y.C.R.R. § 380-2.5(g)(5).

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Please continue to visit our blog for weekly Q&As during August 2017 and other PFL updates throughout the fall.

If you have any questions about PFL, please contact the authors of this post, any of the attorneys in our Labor and Employment Law Practice, or the Bond attorney with whom you regularly work.

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Thank you to everyone who attended Bond’s webinar on New York Paid Family Leave (“PFL”) on Tuesday, July 25, 2017. We had a tremendous turnout and received hundreds of questions. While we didn’t have the opportunity during the webinar to address all of the inquiries that we received, we noted afterwards that many employers raised the same questions. Accordingly, for the month of August, we will be posting a weekly blog article dedicated to answering some of the most frequently asked questions we received during the webinar. We hope this follow-up will be helpful to employers in preparation for the launch of PFL in 2018.

Today’s PFL Q&As focus on taking leave to provide care for a family member with a serious health condition.

Question: Can I use PFL to care for my family member with a serious health condition, if the family member lives in a different state?

Answer: The PFL regulations are not entirely clear on this point. However, the Workers’ Compensation Board (“WCB”) takes the position that an eligible employee may take PFL to care for a family member who lives in another state. The key here is that the employee is in “close and continuing proximity to the care recipient,” which the WCB has interpreted to mean in the same general location as the family member receiving the care. So, for example, if an employee requests PFL to care for a grandparent living in Texas, the employee would need to physically go to Texas to provide care in order to be covered under the PFL.

Question: What constitutes “providing care” for a family member with a serious health condition?

Answer: Providing care includes necessary physical care, assistance with essential daily living matters, assistance in treatment, and personal attendant services. It also includes emotional support, visitation, transportation, and/or arranging for changes in care.

Question:Can I take PFL to care for an adult child?

Answer: Yes. Unlike the FMLA, which contains limits on an individual’s ability to take leave for an adult child, the PFL permits a qualified employee to care for any child with a serious health condition, regardless of the child’s age.

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Please continue to visit our blog for weekly Q&As during August 2017 and other PFL updates, as appropriate.

If you have any questions about PFL, please contact the authors of this post, any of the attorneys in our Labor and Employment Law Practice, or the Bond attorney with whom you regularly work.